Anderson and Civil Aviation Safety Authority
[2008] AATA 206
•17 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6248
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN ANDERSON Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date17 March 2008
PlaceSydney
Decision Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, (AAT Act), the Tribunal grants a stay of the decision of the Civil Aviation Safety Authority (CASA), of 19 December 2007 with regard to Mr John Anderson’s Flight Crew Pilot licences (Aviation Reference Number 161817) to the date of decision of the substantive hearing of his appeal by the Tribunal. ...............[sgd]...............................
Ms G Ettinger
Senior Member
CATCHWORDS
Stay - cancellation of helicopter pilot's various licences - usual principles which have been considered in stay matters canvassed - prospects of success at hearing for review of the decisions made considered - hardship to the Applicant and other parties considered - public safety uppermost – good record – extensive training and experience as helicopter pilot - 150 hours flown since incident in March 2007 - ultimate hearing may be delayed as pilot facing possible charges - stay granted until substantive matter can be heard and determined.
Administrative Appeals Tribunal Act 1975 s 41(2)
Civil Aviation Act 1988 s 31
Civil Aviation Safety Authority v Hotop (2005) 145 FCR 23
Re Decanic and Tax Agents Board of New South Wales (1982) 6 ALD 240
Repatriation Commission and Delkou (1985) 8 ALD 454
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
AMT Helicopters Pty Ltd v Civil Aviation Safety Authority [2006] AATA 314
Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326
REASONS FOR DECISION
17 March 2008 Ms G Ettinger, Senior Member BACKGROUND
1. Mr John Anderson is a 60 year old man who served in the Australian Army for 35 years, retiring in 2003 at the age of 55. He told me that he has approximately 10,000 hours flying experience of which approximately 8,500 hours relate to flying various types of helicopters. He said that he is endorsed to fly both single and twin engine helicopters, but that he has no other qualifications with which he can earn a living. Mr Anderson said that since 2005, he has been a full time helicopter pilot. Mr Anderson told me that he recently commenced flying for Manolus Aviation Ltd (Manolus) in New Guinea where he is a line pilot, and as there is a chief pilot for the airline, he does not have responsibilities such as maintenance, rostering and other aviation functions. Mr Anderson emphasised that he has had an excellent safety record. His intention is to supplement the work for Manolus with casual flying in Sydney, where he now lives with his daughter and family in her house.
2. Incidents occurred on 30 March 2007 in connection with a helicopter flight which caused CASA to be concerned about the flight under Mr Anderson’s control to be flown in excess of the maximum take-off weight for which the aircraft was certified by CASA. This has led CASA to investigate Mr Anderson’s status as a pilot. In a notice dated 10 September 2007, Mr Anderson was provided with notice, that in accordance with regulation 269 of the Civil Aviation Regulations 1988 (CAR), an officer of CASA was considering recommending to a delegate of CASA that his Commercial Pilot (Aeroplane) Licence, Commercial Pilot (Helicopter) Licence, Private Pilot (Aeroplane) Licence, Private Pilot (Helicopter) Licence and Student Pilot Licence be varied, suspended or cancelled, (Licence Show Cause Notice). Mr Anderson replied on 3 October 2007 in a letter from his lawyers which also dealt with other licences, and an Air Operator’s Certificate. Mr Anderson attended a Show Cause conference on 18 October 2007 at which he made further representations to CASA.
3. Following that meeting, CASA, on 19 December 2007, cancelled Mr Anderson’s Commercial Pilot (Aeroplane) Licence, Commercial Pilot (Helicopter) Licence, Private Pilot (Aeroplane) Licence, Private Pilot (Helicopter) Licence and Student Pilot Licence (Aviation Reference Number 161817). On 21 December 2007, Mr Anderson exercised his right to appeal that decision to this Tribunal.
4. The decision of CASA has been stayed as of right pursuant to section 31A of the Civil Aviation Act 1988 (CAA). However the statutory 90 day stay ends on 18 March 2008, and as the substantive matter cannot be heard before that time, Mr Anderson seeks a further stay of the CASA decision. The only issue I have to decide is whether the Tribunal should exercise the discretion to order a stay under section 41(2) of the Administrative Appeals Tribunal Act1975 (AAT Act).
5. At the hearing of the stay application before me, Mr Anderson was represented by Mr P Lithgow of counsel, instructed by Maitland Lawyers, and the Respondent by Mr A Anastasi of CASA. Various documents to which I shall refer were tendered. Mr Anderson produced a written statement dated 11 March 2008 which was tendered, and is Exhibit A1. He also gave oral evidence and was cross examined.
6. On the basis of the evidence before me, the legislation and case law, I have granted a stay of the CASA decision. My reasons follow.
WHETHER THE TRIBUNAL SHOULD EXERCISE THE DISCRETION TO ORDER A STAY PURSUANT TO SECTION 41(2) OF THE AAT ACT
7. The relevant legislation in regard to a stay is section 41(2) of the AAT Act which relevantly provides:
“The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
8. Siopis J explained in Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 at 240:
“The powers conferred on the Tribunal by s 41(2) are to be exercised for the purpose of securing the effective hearing and determination of the review application.”
9. The power to stay pursuant to section 41(2) of the AAT Act is quite a separate exercise to the stay granted pursuant to section 31 of the CAA. The appropriate approach to stay applications in the AAT has been raised on many occasions. It was dealt with, for example, in Repatriation Commission and Delkou (1985) 8 ALD 454 in a repatriation setting, and in Re Decanic and Tax Agents Board of New South Wales (1982) 6 ALD 240 in regard to the registration of a tax agent, and was raised with particular reference to civil aviation matters comprehensively in Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380. Deputy President Forgie suggested in that case that the Tribunal consider at least the following matters:
- The prospects of success of the applications for review of the decisions;
- The hardship to the applicant and other parties affected by the decision if the stay orders are not made; and
- Whether public safety is likely to be imperilled if the stay orders are made.
10. The power to grant a stay pursuant to section 41(2) of the AAT Act is to be exercised for the purpose of securing the effective hearing and determination of the review application. Ultimately, the discretion may be exercised if it is found to be desirable to do so after taking into account the interests of any persons who may be affected by the review.
11. The parties in the matter before me made written as well as oral submissions which addressed the main areas for consideration by me.
the prospects of success of the application on review
12. There was no dispute that, to quote Senior Member McCabe in AMT Helicopters Pty Ltd v Civil Aviation Safety Authority [2006] AATA 314: “It is not necessary that I conduct a mini-trial of the issues to determine whether or not the applicant is likely to succeed at the hearing.” At the time of the stay hearing in AMT Helicopters Pty Ltd, the evidence was still being collated, and whilst I had a folder of documents submitted pursuant to section 37 of the AAT Act (the T-documents) before me, the Respondent has indicated that due to other issues which have arisen since the documents were filed, supplementary T-documents are now to be prepared. It is clear that not all the evidence has been filed, neither that I am required to decide the stay application on the basis of all the evidence which may ultimately be before the substantive hearing. There was also mention before me of the Tribunal hearing being adjourned until after criminal charges which may be laid had been heard. I was informed that it is yet to be determined by the DPP in Western Australia whether it will proceed with any charges.
13. Before me, Mr Anderson gave evidence of his extensive experience in flying, in particular with regard to helicopters. Mr Lithgow argued that Mr Anderson’s prospects of success at hearing were good, and that he had replied to all the issues raised by the Respondent in its notice of cancellation. He argued further that even if the loading for the flight on 30 March 2007 was in excess of CASA certification, which Mr Anderson denies, he discovered on investigation of the incident of 30 March 2007 that “the engine of the aircraft flown by the Applicant on that date was operating at reduced power due to a fault in the engine guide vanes and a computer error in the fuel control unit which gave incorrect information to him while he was pilot in command.” Mr Anderson also argued that the same helicopter is certified to fly at much higher weights in the USA and elsewhere than those agreed to by CASA. He also referred to certain clerical oversights or minor problems in documentation.
14. Mr Lithgow also argued that if the incidents of 30 March 2007 had been so serious, and an imminent risk, the power pursuant to section 31DC of the CAA could have been exercised for an immediate suspension of Mr Anderson’s licence without requiring a show cause notice to be issued. However it took CASA from March 2007 until December 2007 to cancel his licence.
15. Mr Anastasi argued that the incident of 30 March 2007 was a serious one in respect to overloading the helicopter of which Mr Anderson was the pilot, submitting that it was a reckless operation, and that there had been intentional falsification of records in regard to the flight. He submitted there had been no delays in dealing with the cancellation, but that investigations had to be made before the matter could proceed. He submitted in opposing the application for a stay, the Respondent also relied on the issue of a dangerous goods certificate to Gary Ernest Lake when Mr Lake stated that he had not been subject to any training by Mr Anderson. He also submitted that the Respondent relied on the non-disclosure of Mr Anderson’s Post Traumatic Stress Disorder (PTSD), and failure to reply to notices by the required dates as indicators towards the Applicant’s honesty and integrity to be the holder of a pilot licence.
16. In coming to a decision regarding the prospects of success of the application, I have noted that there are genuine issues in dispute between the parties that require resolution. There is argument about loading, and about whether the helicopter was overloaded on 30 March 2007, and whether there were breaches of an administrative nature in record keeping, or whether these were more serious breaches. I was mindful also that at least two other matters have arisen which may be the subject of genuine dispute between the parties.
17. One of these additional matters is that it has come to the notice of CASA that Mr Anderson is on a Repatriation disability pension, and that he has certain conditions, being PTSD, impotence, bilateral sensori neural hearing loss, localised osteoarthrosis of the right ankle, acne rosacea and destruso instability accepted as war-caused, (Exhibit R1). When asked when the conditions were accepted as war-caused, Mr Anderson replied that he could not recall. When asked whether he had disclosed any such conditions to CASA, Mr Anderson replied that he underwent regular medicals as required, and that none of the conditions had affected his ability to hold a pilot’s licence. In relation to the PTSD, he said that he could not recall if he had ever disclosed to CASA that he had been so diagnosed, but that it was 15 – 17 years ago, and he did not take medication for the condition. I am satisfied that these are issues which were not able to be resolved at the stay hearing.
18. As submitted by Mr Anastasi, a further issue has also arisen in regard to a Dangerous Goods Training Course Certificate, dated valid from 13 March 2006 to 13 March 2008, issued to a “Garry Lake” supposedly by Anderson Aviation Pty Ltd (Exhibit R2). There was also a declaration made by Mr Gary Ernest Lake, dated 30 October 2007 in which he stated that he had previously held Dangerous Goods Acceptance qualifications obtained from Qantas and DGM which had expired in mid-2005. Mr Lake stated that he came across the certificate referred to above when cleaning out a drawer before leaving Heavylift Cargo Airlines in October 2007, and was sufficiently disturbed to refer it to CASA, principally because his name had been spelt incorrectly, and because he had never heard of the company who had issued the certificate, and never undergone such training by it. I noted Mr Lithgow’s submission, made on behalf of Mr Anderson, that although it appeared that Mr Anderson’s signature was on the document, the document was a photocopy, and the original was not presently available.
19. I am mindful of Mr Anastasi’s submission that the apparent delay (between March and December 2007) in CASA taking action to cancel Mr Anderson’s pilot licences was in order to conduct investigations, and that if the circumstances warranted the exercise of section 31D of the CAA, CASA would have exercised the power under section 31D. In considering the whole of the alleged breaches which have been raised, and Mr Anderson’s replies, I am satisfied that the application for review has merit, and should be considered in full by the Tribunal at the appropriate time. Mr Anderson does have some prospects of success at hearing.
hardship to the applicant and to other parties affected by the cancellation
20. The issue of hardship to the Applicant and other parties affected by the cancellation decision needs to be considered in light of the discretion available to order a stay.
21. Mr Anderson told me that his only qualifications are in flying, and that if he did not hold a pilot’s licence, he would not be able to earn income. He explained that when he retired from the Army, he invested superannuation of $140,000 in a helicopter business, but that the start-up took longer than he had anticipated and he ended up having to sell his home, and has now incurred large debts. Mr Anderson said that he and his wife now live with their married daughter and family, that amongst others, he has a visa debt of $117,000, a personal overdraft of $12,000, a bank loan of $9,000 and shortly, a tax bill of $26,000.
22. Mr Anderson gave details of his present flying commitments in New Guinea and Australia, and the income he receives from those activities. He said that he has no car, no house, no superannuation, the shares in the helicopter which was to have been the post-retirement business have been sold, and in fact he has no assets. He receives a disability pension from the Army, and his wife works part-time in a nursing home.
23. Mr Anderson explained that he is a line pilot, and works as required by various companies. The Applicant’s argument is that if he is not permitted to continue flying pending the outcome of the substantive application which may be up to a year away, then he will lose not only immediate income producing work, but that he will not be sought for future work. That would be hardship in respect to Mr Anderson, as I understand he is highly qualified and sought out as a helicopter pilot, but presumably the organisations who seek him out for work are likely to be able to find other suitable pilots if he becomes unavailable. That may result in him not being able to obtain work in the future.
24. Mr Lithgow referred me to Tamberlin J’s statement in Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326 at 333:
“It is evident that if a decision favourable to an Applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill….”
25. Mr Anastasi on the other hand, submitted that the only impediment to an effective hearing of the application for review was Mr Anderson’s potential to suffer hardship in the implementation of CASA’s decision. However, that he submitted, was insufficient to enliven the Tribunal’s power to grant a stay.
26. In coming to a decision regarding the hardship to the Applicant and other parties affected by the cancellation decision, I have taken into account the details of Mr Anderson’s financial situation, and his lack of transferable skills. I am satisfied from the evidence that Mr Anderson suffered major losses in connection with his airline business, and that he has substantial debts to repay. I accept that with his background, and at 60 years of age he has no transferable skills, and no other means of income apart from flying, and the disability pension he receives. He has recently contracted for substantial work in New Guinea, and appears to be able to deal with his financial commitments in that way.
27. I understand that in all his present employment Mr Anderson works as a line pilot under the supervision of a chief pilot and organisation, and I take that into account in considering the issue of hardship to the Applicant, and in my application of the discretion to grant a stay.
issue of public safety
28. The issue of the safety of the public must be the most important in the consideration of whether it is desirable to exercise the discretion to grant a stay. (CAA and Re Griffiths (supra)).
29. Mr Lithgow submitted that the allegations raised by the Respondent “consist of technical and administrative/clerical matters and do not involve any serious and imminent breach of air safety in respect of helicopter operations involving the Applicant, particularly as a line pilot”. He also submitted that the Applicant has an excellent safety record and extensive experience accumulated over a long period in many different types of aircraft.
30. Mr Lithgow also referred to the powers CASA has pursuant to section 30DC of the CAA to suspend a pilot immediately if the conduct considered poses a serious and imminent risk to air safety. He submitted that no stay given by the Tribunal would affect CASA’s ongoing ability to invoke section 30DC if warranted. Mr Lithgow submitted that Mr Anderson had flown some 150 hours without any incident or suggestion of any incident since 30 March 2007, and that he should not now be considered a serious and imminent risk to air safety. A stay should be granted he submitted.
31. Mr Anastasi emphasised that the powers under section 30DC are not exercised lightly. He also referred to Re Griffiths where the Tribunal refused a stay, and stated:
“There is a public interest in ensuring that air safety procedures are followed in the civil aviation industry. That concern extends to those on the ground and to those who are passengers, whether as pilots of otherwise. The fact that Mr Griffiths has been allowed to fly within certain conditions does not mean that aspects of safety are not relevant in this case …”
32. I am persuaded by the fact that, to my knowledge, the one-off incident of 30 March 2007 was investigated, and the cancellation of Mr Anderson’s licence did not take place until 19 December 2007. It is likely that CASA has not considered Mr Anderson a serious and imminent risk to air safety as it has not invoked section 30DC of the CAA which, with sufficient reason, it can do at any time. I am satisfied that as it appears Mr Anderson has flown approximately 150 hours without incident since March 2007, and is now working only as a line pilot, that he does not pose a threat to the safety of the public. Taking into account that most important consideration, I am satisfied I should exercise the discretion to grant the stay applied for.
CONCLUSION
33. I have considered all evidence and case law and the factors relevant to exercise of the discretion to grant a stay pursuant to section 41(2) of the AAT Act. In regard to the prospects of success of the application for review of the decision, I have found that there are genuine issues in dispute between the parties that require resolution, and a hearing at the Tribunal.
34. As to the issue of hardship to Mr Anderson and other parties; I am satisfied that although financial hardship is not the only issue which must be considered when considering the exercise of the discretion to grant a stay, Mr Anderson would suffer genuine financial hardship, and future lost opportunity, if not permitted to hold a pilot’s licence.
35. As to the safety of the public; I am satisfied that Mr Anderson is a highly experienced and qualified helicopter pilot. The possible non-disclosure of his PTSD appears not to have, over the past 15 – 17 years, affected the results of the regular medical checks he must undergo as part of his licence. In his present employment Mr Anderson works as a line pilot under the supervision of a chief pilot and organisation, and I take that into account in considering the issue of hardship to the Applicant, the safety to the public and in my application of the discretion to grant a stay. I find that weighing up all the factors involved, it is desirable to grant a stay in order to secure the effectiveness of the hearing, and determination of the application for review.
DECISION
36. Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, (AAT Act), the Tribunal grants a stay of the decision of the Civil Aviation Safety Authority (CASA), of 19 December 2007 with regard to Mr John Anderson’s Flight Crew Pilot licences (Aviation Reference Number 161817) to the date of decision of the substantive hearing of his appeal by the Tribunal.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ............[sgd]....................................................................
AssociateDate of Hearing 13 March 2008
Date of Decision 17 March 2008
Counsel for the Applicant Mr P Lithgow
Solicitor for the Applicant Maitland Lawyers
Representative of the Respondent Mr A Anastasi
3
0